Here are the remaining 5 tips from Presiding Justice Arthur Gilbert of the Second District Court of Appeal, Division 6. In A Brief Browse on Briefs: Writing Tips from a Judge (part 1) and part 2, we gave the first 10 of 15 writing tips from the judge .
1. Write in a style that is crisp, concise, and sparkles with clarity. Some concepts are complex, but they can be stated clearly. To simplify is not to patronize. Writers who obfuscate and complicate make it tough for both the reader and the writer. If the brief reminds you of Kant, rewrite it so that it reminds you of Plato. Avoid the abstract; embrace the concrete. Refer to the parties by name.
2. Short sentences usually deliver more power than longer ones. Active verbs deliver more punch than passive ones. Don’t say, “An objection was interposed by counsel.” “Counsel objected” is better. Verbs should be close to their subjects and objects. What do you think of the following sentence? “The judge, looking surreptitiously to the side, and winking at the amused clerk, sustained the objection.” I don’t think much of it either.
3. Make the brief short, even though it takes a longer time to write. Use Occam’s razor and cut, cut, and then cut some more. If we analogize the writing of a brief to the making of a movie, the cutting room floor should be a mess.
4. Do not pad. Be wary of adjectives. They are seductive, but they promise more than they give. The most dependable friends we have are nouns and verbs. Verbs should be active. They provide the muscle to carry your ideas forward.
5. Avoid such pests as:
- “in connection with”
- “with respect to”
- “despite the fact that”
- “the fact that”
- “the former and the latter”
- “it would appear that”
- “in terms of”—unless we are talking about mathematics
- “viable”—unless you are writing an abortion case
- “contact”—unless you are writing about sports, electricity, or vintage aircraft
- “while” as a synonym for although
- “parameter” as a synonym for perimeter or boundary
- “alternatives” are not a choice among more than two possibilities or things
- “meaningful”—adds little meaning, particularly when speaking of a “meaningful relationship”
- most adverbs, in particular “clearly.” It probably isn’t clear if you have to say it. Also avoid the meaningless adverb “rather”—”He was a rather temperamental judge.” Was he or wasn’t he?
Even if you forget the rules, please try not to forget this general principle: Unlike the poet who writes to understand, lawyers write to be understood.
CEB’s books offer helpful advice on drafting all types of court briefs, including complaints and answers (see Civil Procedure Before Trial) and appellate briefs (see Civil Appellate Practice). For an entertaining and informative program, check out Daniel U. Smith’s seminar on persuasive legal writing, available On Demand. You might also go to my earlier blog posts on creative writing techniques for your legal briefs.
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